Alcoholic Truck Driver Case Is Good For Transportation Employers, But Be Careful

Don’t get too excited about that recent decision upholding the termination of the alcoholic truck driver.

Proceed with caution!

The U.S. Court of Appeals for the 11th Circuit, which hears appeals from federal courts in Alabama, Florida, and Georgia, recently affirmed summary judgment for Crete Carrier Corporation. Crete fired one of its truck drivers working out of its Atlanta terminal after the driver was diagnosed with alcoholism. The driver had sued for disability discrimination under the Americans with Disabilities Act and also had interference and retaliation claims under the Family and Medical Leave Act.

The regulations of the U.S. Department of Transportation say that an individual is not qualified to operate a commercial motor vehicle if he has a “current clinical diagnosis of alcoholism.” The regulation doesn’t really define what this means, but it gives employers the authority to determine whether a driver is able to work. In Crete’s case, it had a policy providing for termination of any driver who had a diagnosis of alcoholism in the past five years. When Crete terminated the plaintiff, Sakari Jarvela, Mr. Jarvela had been diagnosed for only six weeks.

Mr. Jarvela contended that only a DOT medical examiner (who had issued him a six-month medical certification) could determine whether he had a current clinical diagnosis of alcoholism. However, the court rejected his argument, noting that the DOT regulations make clear that an employer makes the final determination regarding who is qualified to drive a commercial truck. Because the regulations “place the onus on the employer to make sure each employee is qualified to drive a commercial vehicle,” the court said, “the employer must determine whether someone suffers from a current clinical diagnosis of alcoholism.” Thus Mr. Jarvela was not able to meet an essential job function as set forth in his written job description.

Great result for Crete.

So, why should transportation employers be cautious?

*Alcoholism is a “disability” within the meaning of the ADA, and employers may have to make reasonable accommodations to employees with alcoholism. (The ADA rules on use of illegal drugs are much more employer-friendly than the rules on alcoholism. It’s usually legal to fire an employee for current use of illegal drugs.)

*The ADA rules say that if another federal law (like DOT regs) prohibits the hire or employment of someone based on a medical condition, then a covered employer can obey that law without violating the ADA. But if the other federal law gives the employer any leeway (for example, saying only that the employee must be removed from certain job duties), then the employer has to comply with its ADA obligations, which could include the reasonable accommodations of job restructuring or transfer to a different job.

*The DOT regulations say only that a person with a “current clinical diagnosis of alcoholism” is not qualified to drive. This, if you’ll pardon the expression, leaves an ADA loophole big enough for an 18-wheeler to drive through. Most importantly, it means that a transportation employer might have to consider reassigning an alcoholic driver to a non-driving position – for example, a loading dock job – as a reasonable accommodation. Mr. Jarvela apparently realized this too late. He didn’t make the argument soon enough, and so the issue was considered “waived” on appeal.

*Mr. Jarvela’s official alcoholism diagnosis was only six weeks old, which is pretty “current” by any standard. Would the result have been the same if he had been diagnosed 4 ½ years before his termination?

The FMLA issues in the Crete case were more straightforward. The Court found that Mr. Jarvela did not have a valid FMLA “interference” claim (wrongful denial of FMLA leave) because he was already due to be terminated for violating Crete’s no-recent-alcoholism rule. Mr. Jarvela did not have a valid FMLA “retaliation” claim (adverse action for requesting FMLA leave) because it was already established that he was terminated for violating the no-recent-alcoholism rule, not for requesting FMLA leave.

So, transportation employers, this case is good news, but here are some things you can do to put yourself in a stronger position if you have to take action against a driver with a substance abuse problem:

Make sure that your job descriptions and policies clearly say that qualification to drive (under both the DOT regulations and in the opinion of the company) is an essential function of the driver job.

Because the DOT regulations on alcoholism are vague, make sure your policy defines “current.” And it’s best for your definition to be based on some recognized medical or scientific authority — otherwise, you may have trouble defending yourself before the EEOC or in court.

To the extent the law lets you, be sure to pay attention to information about medical disqualification regardless of the source – including workers’ compensation records, Medical Review Officer safety concern letters, or fitness for duty evaluations.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

- hide

Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.